"Darling you are not going anywhere": the right to exit in EU Law

Lazowski, A. 2015. "Darling you are not going anywhere": the right to exit in EU Law. European Law Review. 40 (6), pp. 877-894.

Title"Darling you are not going anywhere": the right to exit in EU Law
AuthorsLazowski, A.
Abstract

This article is devoted to the right to exit and restrictions that may be imposed by the Member States on the movement rights of EU citizens and their family members. Until recently the right to exit was largely a non-issue for EU practitioners and scholars. Never before in the history of Europe individuals were so free to experience the joys of international travel, economic activity abroad or residence in another European country. Conceptually, the right to leave is firmly anchored in the free movement of persons acquis and, as such, it is largely taken for granted. No doubt it is so, as the right to leave ones country of nationality or residence encapsulates freedom and personal liberty, which the citizens of the European Union benefit from. It is a conditio sine qua non for the exercise of the right to move and reside freely established in Article 21 TFEU. This analysis unlocks the right to exit, as provided for in EU law, and demonstrates that it is not a straight-forward affair. EU law does not provide a holistic set of rules but co-exists with the ECHR, other international conventions as well as domestic legislation of the Member States. It is a matrix of legal regimes making the overall picture blurred. In EU law, somewhat traditionally, restrictions would be invoked on the right to move and reside but not on the right to leave, particularly of own citizens. The right to exit has started to attract attention with the accession of Bulgaria and Romania as both countries not only have had domestic laws allowing restrictions to own citizens movement rights but also national authorities eagerly imposing the exit bans. This eventually reached the Court of Justice, which - in a series of judgments - held that Article 21 TFEU and Directive 2004/38/EC on free movement of persons apply to such restrictions. It means that the right to exit can be limited only on grounds of public policy, public security and public health, under the condition that the restrictive measures serve one of those objectives and pass the proportionality test. The discussion has recently gained momentum as a number of Member States make attempts to stop their own citizens from going to the Middle East to fight for the ISIS. In this case, the EU legislation in question may be perceived by some as a straightjacket limiting the powers of national authorities to refuse exit on security grounds.

JournalEuropean Law Review
Journal citation40 (6), pp. 877-894
ISSN0307-5400
Year2015
PublisherSweet & Maxwell Ltd.
Publication dates
Published2015

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